Browsing by Author "Konuralp, Haluk"

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    Gayrimaddi malların haczi ve paraya çevrilmesi
    (Sosyal Bilimler Enstitüsü, 2002) Demirci, Aylin; Konuralp, Haluk; Kırca, İsmail; Hukuk
    Intellectual property is a contemporary issue in Turkey for the reason of its growing economical value as well as its national and international importance. National regulations regarding the intellectual property, which was behind the international evaluation and was insufficient against the modern life requirements, have been updated especially since 1995 for the purpose of globalization with European Union. Although the regulations issued after 1995 provide the necessary protection on intellectual property, there is no provision referring the procedure to be followed for the attachment and sale of the same within execution law. Beside of this, the Execution and Bankruptcy Law of the Turkish Republic which was issued long time before 1995, is too far to offer a solution about it. Therefore, we need to apply the current provisions of the Execution and Bankruptcy Law by analogy and under the consideration of the features and regulations regarding the intellectual property as well as to create some alternative solutions in case of necessity where the Execution and Bankruptcy Law principles allow. Intellectual property, as intellectual product, needs some concrete tools transferring or showing them to be sensed by people and to fulfill its function in the society, however its existence is independent and separate from them. Trademark, does not represent the materials such as characters and figures that it takes the form of, but represents the prevention right of the owner regarding the use of such materials on the packages of the same or similar products, or the marketing or the stocking of the products to be marketed under the same trademark, the export or import of the products under the same trademark or the use of the trademark in any company documents or ads by the others. (Article 1319/2 of Statutory Decrees Regarding the Protection of the Trademarks of the Republic of Turkey). Copyrights mean the moral rights of the owner regarding such as the disclosure of the intellectual and art product to public (Article 14 of Law of Intellect and Art Products of the Republic of Turkey), the prevention of amendments on the product by others (Articles 16 and 17/1 of the Law of Intellect and Art Product) as well as the pecuniary rights of the owner regarding such as conversion of the product to another product, copying, publishing, presenting, transferring to public through the tools recording figures, shapes and/or sounds (Articles 21-25 of the Law of Intellect and Art Products). Patent rights mean the moral rights of the owner regarding such as asking to be stated as the invention owner, applying to patent registration to register the invention on his name, and the pecuniary rights regarding manufacture, use, sale and export of the products which is subject to invention (Articles 73/2 and 73/2, a of Statuary Decree Regarding the Protection of the Patents of the Republic of Turkey). Trademarks, copyrights and patent rights can be subject to attachment since they have economical value and they represent guarantee in obligor's asset for the creditor. However, some of the intellectual properties can not be subject to attachment since it is forbidden indirectly by the private law because of their features or directly by the respective regulation. We can give examples for the first case as follows: the moral rights of the intellectual and art product or the invention owner can not be assigned to any other person since they are strictly attached to the owner's personality (Article 23 of the Civil Law of the Republic of Turkey). In consequence of that they can not be subject to attachment in execution law. We can give examples for the second case as follows: Both Statuary Decree Regarding the Protection of the Trademarks and Statuary Decree Regarding the Protection of the Patents do not allow the licensee to assign or to sub-license his license rights to any other person unless otherwise agreed in the license agreement (Articles 21/4 of Statuary Decree 132Regarding the Protection of the Trademarks and Article 88/5 of Statuary Decree Regarding the Protection of the Patents). Therefore, licensee can not assign his license rights to any other person unless he is expressly entitled to do so by the licensor in the license agreement. In consequence of that the license rights of the licensee can not be subject to attachment for the debt of the licensee. Since there is not such provision in the Law of Intellect and Art Products, the licensee can assign his license rights to another person although the owner (licensor) forbids the licensee to do so. In consequence of that in such a case the license rights of the licensee can be subject to attachment for licensee's debts provided that the proceeding of the attachment does not violate the personal rights of the owner (licensor) (Article 62/1, 3rd paragraph of the Law of Intellect and Art Products). The copyrights of which attachment is expressly forbidden by the Articles 61 and 62 of the Law of Intellect and Art Products as follows: a) originals and draft materials of the intellectual and art products which are not disclosed to the public and which belong to the owner or to his accessories, b) pecuniary rights on the intellectual and art products which are not disclosed to the public yet and which belong to the owner or to his accessories and c) the credits which are not cash occurring from the transactions on the pecuniary rights. Since the originals and the draft materials of the copyrights are the movable materials, they are subject to the attachment and sale in accordance with the provisions of the Execution and Bankruptcy Law regarding the movable materials. However, different from the regular movable materials they must be appraised by an expert during the attachment and sale procedure since it requires a specific knowledge (Articles 87 and 128/2 of the Execution and Bankruptcy Law) and they must be sold in the market by an expert person entitled by the court instead of sale by auction in order to prevent sale in law price (Article 121 of the Execution and Bankruptcy Law). 133Attachment of the trademarks and patents and license rights on the same as well as the pecuniary rights and the license rights on the intellect and art products is conducted in accordance with Article 94 of the Execution and Bankruptcy Law regulating the attachment regarding all materials and rights other than movable and immovable property. In case of attachment of the trademarks, patents and especially the pecuniary rights on the cinema products, the situation must be informed to Turkish Patent Institute and The Ministry of Culture to be registered in order to restrict the act of the owner on the same. (Article 92/2 of the Statutory Decree Regarding the Protection of the Patents, Article 19/2 of the Statutory Decree Regarding the Protection of Trademarks, Article 13/3 of the Law of Intellect and Art Products). In accordance with the Article 62/4-5 of the Law of Intellect and Art Products, when the pecuniary rights on the product are attached, the delivery of the original or the draft materials of the products or the necessary tools in order to copy the same can be asked temporarily from the possessor for the purpose of using these rights. The main principle of the Execution and Bankruptcy Law is to satisfy the creditor with money. It means that the creditor takes his credit cash after the execution procedure; the attached properties can not be tranferred and delivered to the creditor against his credit. In consequence of that the creditor who asks attachment, can not owe or use the attached trademark, patent or copyrights. These above mentioned intellectual property which requires a special procedure to be sold will be subject to Article 121 of the Execution and Bankruptcy Law which is parallel with Article 94 of the Execution and Bankruptcy Law. In accordance with this Article, execution officer will ask the court by which procedure to follow to sell it. According to the features of the intellectual property the court may decide sale by auction or may appoint a third party who is expert on this issue to sell it in its market instead of deciding sale of auction in order to avoid the risk of sale of the intellectual property with a low price.
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    Medeni usul hukukunda tıbbi bilirkişilik
    (Sosyal Bilimler Enstitüsü, 2005) Taşyaran, Fatma Özge; Konuralp, Haluk; Hukuk
    TASYARAN, Fatma Ozge, Medical expert in the civil low of procedure, masterof the thesis, adviser of the thesis Doc. Dr. Haluk KONURALP, 303 p.SUMMARYIf the judge need a special and tecniqual information to solve the case becauseof the properties and qualities of the event, and believe that he doesn't have it,anexpert should be applied.One of the situations from which the special and tecniqualinformation are neccessary is the case in which the judge needing medicalinformation applies the medical expertise.Medical expert is a doctor to whom the judge applies for his medicalinformation to solve the case in both fine and law cases, medical matters.Because of the importance of the medical export in the case,the matters such aslegal status, being determined and choosen of rights and liabilities,its qualities,inwhich cases can be applied, being eveluated the report by the court and beingdetermined the connecting effect to the court,both placed in legal coordinations andcaused various discussions in doctrine.In this thesis whose topic is "Medical Expert in the Civil Law of Procedure",these matters were touched on and given suggestions about the solution of theproblems emerging about the expert in practice.